Pro Bono

(Try saying that 3 times fast and learn why today might also be national tongue twister day.)

What’s this got to do with wellness? Let me try to convince you that it does.

Per today’s ABA Journal, there are “gaps in Americans’ civic knowledge.” The gaps were revealed by the 2019 ABA Survey of Civic Literacy. Honestly, the numbers don’t look terrible to me. Especially compared to numbers I reported in this space a few years.

In this post, I referenced this poll. 37% of those surveyed couldn’t name EVEN ONE of the protections in the 1st Amendment to the United States Constitution.

Free speech, free press, and free society indeed.

As I blogged back then,

Worse, per the same poll, only 1 in 4 Americans can name all 3 branches of government!

If 3 out of 4 don’t know the branches, how are we to impress upon the executive & legislative branches the importance of an independent & fully funded judicial branch?

Here’s a simple way to help: contact the Vermont Bar Association at info@vtbar.org Ask for a pocket constitution. Give the pocket constitution to a kid, or to a teacher, or to a client who is a school board member.

Or, do what a number of Vermont lawyers have been doing around the state: volunteering their time to visit schools and civic organizations to talk about the Constitution and civics. It might sound like a small step. It is. But small steps often lead in the right direction.

Within days, the challenged was accepted and my singing debut finalized. At the October 2017 Annual Meeting of the Vermont Bar Association I subjected those in attendance to my rendition of the Schoolhouse Rock! song. How it has not gone viral is truly the 9th wonder of the modern world.

If picturing me singing The Preamble to a ballroom full of 300 as my parents looked on in abject horror doesn’t improve your mood, then I don’t know what wellness is.

Furthermore, last week, Eileen Blackwood and I presented on professionalism at the VBA’s Basic Skills conference. Eileen urged the new lawyers to consider pro bono work. Among its other benefits, Eileen shared a poignant story of how a case that she handled pro bono brought her a measure of personal satisfaction that she didn’t always find in her work for “paying” clients.

Her story is relevant today.

Pro bono is a professional responibility. The rule here. It states that a substantial majority of a lawyer’s pro bono hours should be provided to persons of limited means or to organizations whose primary purpose is to support persons of limited means.

After that, however, Rule 6.1(b)(3) indicates that additional hours may include “participation in activities for improving the law, the legal system or the legal profession.” Per Comment [8], this includes “taking part in Law Day activities.”

So,

it’s clear that we need to do more to increase civic knowledge;

Rule 6.1(b)(3) and Comment [8] indicate that Law Day activities count as pro bono;

Remember – you don’t have to solve the access to legal services problem on your own. Whatever you can give, it makes a difference.

“One day, an old man was walking along a beach that was littered with thousands of starfish that had been washed ashore by the high tide. As he walked he came upon a young boy who was eagerly throwing the starfish back into the ocean, one by one.

Puzzled, the man looked at the boy and asked what he was doing. Without looking up from his task, the boy simply replied, “I’m saving these starfish, Sir”.

The old man chuckled aloud, “Son, there are thousands of starfish and only one of you. What difference can you make?”

The boy picked up a starfish, gently tossed it into the water and turning to the man, said,

Rule 6.1 of the Vermont Rules of Professional Conduct suggests that lawyers provide 50 hours of pro bono legal services per year. One area in which pro bono services are needed: helping our veterans.

Last Friday, and in anticipation of Veterans Day, President Bob Carlson blogged on the ABA’s work to ensure that our veterans can access legal services, including the services necessary to secure the benefits to which they are entitled. The post includes many tips on how to get involved in pro bono efforts on behalf of veterans.

For those of you who don’t know her, I’m proud to use this opportunity to introduce you to Katelyn Atwood. Katelyn practices law in Rutland and is a fellow member of the Vermont Bar Association’s Board of Managers.

Later today, I’m speaking to the New Hampshire Association of Criminal Defense Lawyers.

For a criminal defense lawyer, which rule should spring to mind if a plea deal is conditioned upon the lawyer’s client waiving claims of ineffective assistance of counsel? The rule on:

A. Candor to the Tribunal

B. Meritorious Claims & Contentions

C. Client Confidences

D. Conflicts of Interest

Several advisory opinions have reached the same conclusion: the criminal defense lawyer’s personal interests conflict with the client’s and, in addition, implicate the rule that prohibits a lawyer from asking a client to agree to limit the lawyer’s liability unless the client is represented by counsel. See, Rules 1.7(a)and 1.8(h). For more, see Pennsylvania Bar Association Formal Opinion 2014-100, provided by Thomas Wilkinson, a regular member of the honor roll.

Question 5

Speaking of Vermont & New Hampshire . . .

In 2012, Tommy Lee Jones was nominated for the Academy Award for Best Supporting Actor. The nomination was for his role in Lincoln. He played a Pennsylvania lawyer who was elected to Congress as a “Radical Republican,” chaired the Ways & Means Committee during the Civil War, and whose fierce opposition to slavery was instrumental in the passage of the 13th and 14th Amendments.

My favorite quote attributed to him? As a trial lawyer, and in response to a judge who warned that he was manifesting contempt: “Sir, I am doing my best to conceal it.”

Oh, by the way, the Pennsylvania lawyer was born and raised in Vermont, then attended college in New Hampshire.

And what a Friday it is!! Go Sox! I’d say the lock screen is working just fine.

As long-time readers know, when it comes to sports, I’m disturbingly superstitious. I truly believe that quirks like the lock screen will help Boston to win the World Series, perhaps even more than anything the players do on the field.

As I thought about the objective foolishness of the superstitions that I associate with “helping” my favorite teams, my mind wandered, scrolling through various notions of “helping.”

Then . . . it hit me, and my mind’s equivalent of a cursor stopped dead in its tracks on this realization: when it comes to some of the most critical help that needs to be provided, Vermont’s lawyers are the equivalent of a team that has won the World Series many times over.

I’m talking about pro bono.

Yesterday was the Vermont Bar Association’s Pro Bono Conference. I was fortunate enough to speak during the plenary session. As I did, I looked out over an audience of lawyers of all ages, firm sizes and areas of the state. Most were there to learn how to help. Others, the panelists, were there to teach how to help.

I was humbled & full of pride to be in the presence of so many lawyers so willing to give of themselves.

I was as proud to realize how far we’ve come on another topic: lawyer wellness.

The conference’s theme was serving vulnerable Vermonters. I opened my talk by reminding lawyers that, as a profession, we are a vulnerable population. Then, at lunch, United States Bankruptcy Judge Colleen Brown tied pro bono service to wellness.

“We make a living in what we get. But we make a life in what we give.”

I agree with Judge Brown. In my presentation, I used this quote from Justice Sandra Day O’Connor:

“public service marks the difference between a business and a profession. While a business can afford to focus solely on profits, a profession cannot. It must devote itself first to the community it is responsible to serve. I can imagine no greater duty than fulfilling this obligation. And I can imagine no greater pleasure.”

Finally, after the day’s seminars ended, Vermont’s newest attorneys took the oath of admission in a ceremony in the well of the House chamber. In remarks delivered after administering the oath, Justice Harold Eaton urged lawyers to use their talents, skills, and position to help to provide & ensure access to justice. In addition, he stressed the critical need for lawyers to take care of their own physical and mental well-being.

Two weeks ago, I blogged about choosing to help. One way to help: pro bono work. When it comes to pro bono, there never has been and never will be a better time to help than now.

Indeed, next week is the ABA’s 10th Annual national celebration of pro bono. The focus is disaster relief. In a message marking the occasion, ABA President Bob Carlson urges lawyers to help with disaster resiliency efforts. (Many states relax their rules on unauthorized practice to allow nonresident lawyers to provide assistance in response to natural disasters.)

As I said, Vermont’s lawyers are champions when it comes to helping. And Mary Ashcroft is our MVP.

But, in sports, whenever any team wins a championship, there’s always the next season. Similarly, as much as Vermont has done for those who need but cannot afford legal services, there’s always going to be more to do.

All in all, yesterday reminded me that law is about helping, pro bono is about helping the most vulnerable among us, and, when it comes to lawyer wellness, we need to help ourselves to ensure that we are healthy enough to help others.

Choose to help.

Onto the quiz!

Rules

None. Open book, open search engine, text/phone/email-a-friend.

Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)

Unless stated otherwise, the Vermont Rules of Professional Conduct apply

Please consider sharing the quiz on social media. Hashtag it – #fiveforfriday

Question 1

Fill in the blanks. The same phrase goes in each blank.

When providing pro bono legal services, a substantial majority of the 50 hours should be provided to persons of _____________ or certain organizations designed to serve persons of _________________.

Question 2

This is a “what am I” question:

In Bar Counsel Universe, I’m often referred to as “unbundled legal services;”

I am a way to help provide access to legal services for those who might not be able to afford a lawyer.

I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure

I am specifically authorized by the Vermont Rules of Professional Conduct

Under the Rules of Professional Conduct, I am allowed only if (a) I am reasonable under the circumstances, and (b) the client gives informed consent.

What am I?

Question 3

Lawyer called me with an inquiry involving Client and Other. I listened. Then, I said:

“it’s ok as long as:

Client gives informed consent;

there’s no interference with your professional judgment or your relationship with Client; and,

you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Question 4

Later today, I’m speaking to the New Hampshire Association of Criminal Defense Lawyers.

For a criminal defense lawyer, which rule should spring to mind if a plea deal is conditioned upon the lawyer’s client waiving claims of ineffective assistance of counsel? The rule on:

A. Candor to the Tribunal

B. Meritorious Claims & Contentions

C. Client Confidences

D. Conflicts of Interest

Question 5

Speaking of Vermont & New Hampshire . . .

In 2012, Tommy Lee Jones was nominated for the Academy Award for Best Supporting Actor. The nomination was for his role in Lincoln. He played a Pennsylvania lawyer who was elected to Congress as a “Radical Republican,” chaired the Ways & Means Committee during the Civil War, and whose fierce opposition to slavery was instrumental in the passage of the 13th and 14th Amendments.

My favorite quote attributed to him? As a trial lawyer, and in response to a judge who warned that he was manifesting contempt: “Sir, I am doing my best to conceal it.”

Oh, by the way, the Pennsylvania lawyer was born and raised in Vermont, then attended college in New Hampshire.

Disclaimer: I serve as the chair of the Vermont Bar Association’s Pro Bono Committee. Still, there’s an entire section of the Rules of Professional Conduct dedicated to pro bono. So, it’s a topic that’s eminently appropriate for this blog.

“Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should render at least 50 hours of pro bono publico legal services per year . In fulfilling this responsibility, a lawyer should

(a) provide a substantial majority of the 50 hours without fee or expectation of fee to:

(1) persons of limited means; or

(2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.”

The remainder of the 50 hours can be satisfied in any of the ways outlined in Rule 6.1(b).

Who qualifies as a “person of limited means?”

See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”

My client stiffed me, that’s pro bono, right?

Wrong. Rule 6.1(a) is clear: a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”

Comment [4] drives home the point: “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”

Note, however that the Comment goes on to indicate that “. . . the award of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.

I’m a government attorney, so I don’t have to do pro bono.

False. Rule 6.1 applies to all lawyers. Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b). Specifically, the Comment states

“Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2). According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).

Ok Mike, I’m doing pro bono work, what other rules apply?

All of them! You must be competent & diligent. You can’t communicate with a represented party on the subject of the representation without counsel’s consent. You can’t lie. In short, pro bono work is not a license to act unethically.

under the auspices of a program sponsored by a nonprofit organization or court

without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.

If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict. In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation. See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”

Remember: a lawyer may provide pro bono services outside the auspices of program sponsored by a nonprofit or court. However, if so, the lawyer must check for conflicts.

Also, here’s a message that Navah Spero, President of the Chittenden County Bar Association, sent today: “in addition to the many wonderful opportunities available at non-profits in the area, the courts are always looking for volunteers to serve as guardians ad litem (Family Division), attorneys for proposed wards in guardianships (Probate Division), attorneys for the rent escrow clinic (Civil Division), and more. Be in touch with the court clerks directly for more information.”

There should be a conference on this.

There is. October 18, 2018, at the Statehouse. Save the date. The conference will include seminars on:

By rule, when must a lawyer provide a client or third person with a full accounting of funds or property that the lawyer held for the client or third person?

A. upon request by the client or third person

B. upon the termination of the representation

C. monthly

D. regularly

V.R.Pr.C. 1.15(d) states that a lawyer “upon request of a client or third person, shall promptly render a full accounting of such property.” I’d put to you (Rake) that Rule 1.16(d) suggests that an accounting should be provided upon on the termination of the representation as well.

Question 3

True or false.

In an ex parte proceeding, a lawyer does not have a duty to inform the tribunal of material facts that are adverse to a client’s position.

Lawyer works at Firm. In addition, Lawyer often provides short-term legal services under the auspices of programs sponsored by nonprofits and a local court. When providing such services, neither Lawyer nor clients have an expectation of continuing representation.

When you believe in things that you don’t understand, then you suffer. Superstition ain’t the way.

Johanan Vigoda was a lawyer. In 1971, Vigoda helped a client who was a musician to negotiate a contract with a record company. Per the terms of the contract, the musician had to pay 6% in royalties to Vigoda indefinitely & forever, including to Vigoda’s heirs after Vigoda’s death.

Vigoda died in 2011. In 2013, the musician learned that the record company was still making royalty payments to Vigoda’s widow. The musician ordered the payments to stop. The musician sued, seeking an order that he was not required to continue to pay royalties beyond Vigoda’s death. The musician claimed that Vigoda had duped him into signing the contract, never telling him that it called for “forever” royalty payments.

Vigoda’s widow counter-claimed. She claimed that Vigoda’s regular practice was to read the terms of any proposal, agreement, or contract to the musician. Thus, she alleged that the musician had agreed to and signed the contract after Vigoda read it to him. She sought more than $7 million in royalty payments that had not been made between 2013 & 2015. Last summer, the musician and Vigoda’s widow settled the dispute.

As usual, I greatly appreciate the thoughts & stories that readers shared in response to the Friday intro. Remember: people care, help is available. If you (or someone you know) needs help, you can make a confidential inquiry of me, or, you can call the Vermont Lawyers Assistance Program.

Also, please remember this: when it comes to helping someone else, don’t think of it as whether you have a professional obligation to make a report. Think of it as helping another human being. As I blogged last March

“In my experience, lawyers are in position to recognize signs of substance abuse and mental health issues exhibited by another lawyer, whether a co-worker, colleague, or opposing counsel. Some lawyers wonder whether there is a duty to report substance abuse and mental health issues. Maybe. Rule 8.3, the reporting rule, is HERE.But how about this? How about coming it at from the perspective of helping another human being instead of analyzing whether another’s struggles trigger your duty to report? If a colleague, co-worker, or opposing counsel needs help, why not help them?

Yes, I get it, we are reluctant to get involved. Some of these might sound familiar:

It’s not my business.

I don’t know for sure, could’ve been she was having a bad day.

It helps my client that he isn’t doing his job.

The firm doesn’t need the bad publicity.”

When we’re dealing with a number like 108, those reasons for reluctance don’t cut it.

There’s a rule that prohibits a lawyer from counseling or assisting a client to engage in conduct that the lawyer knows is criminal or fraudulent. In 2016, a the Supreme Court adopted a Comment to the rule. The Comment makes it clear that lawyers may:

Vincenzo Leoncavallo was an attorney and judge in Italy. In 1865, he presided over a murder trial that involved a love triangle: the victim was stabbed to death by a romantic rival. The victim was Judge Leoncavallo’s son’s babysitter.

Fast forward to 1910. It was then, 108 years ago, that the first public radio broadcast took place. The broadcast was of 2 operas.

One of the operas had been composed by Judge Leoncavallo’s son. It involved a love triangle in which Silvio was stabbed to death by Canio, a jealous romantic rival.

Name the opera.

Bonus: name the character for whom Silvio and Canio shared dueling affections.

It’s a season of giving. As I’ve aged, I’ve learned that the gift of time is often more appreciated than a gift of a thing. The lesson might translate to the legal profession.

Yesterday I noticed this tweet from Attorney Bob Carlson. Bob is the President-Elect of the American Bar Association. It reminded me that the need for our time never goes away.

Pro Bono is the legal profession’s way of giving time. As Bob tweeted, one easy way to give of your time is through the ABA’s Free Legal Answers program. Vermont participates in the program. For more information, please visit https://vt.freelegalanswers.org/

“Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should render at least 50 hours of pro bono publico legal services per year . In fulfilling this responsibility, a lawyer should

(a) provide a substantial majority of the 50 hours without fee or expectation of fee to:

(1) persons of limited means; or

(2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.” (emphasis added).

The remainder of the 50 hours can be satisfied in ways outlined in Rule 6.1(b).

Who qualifies as a “person of limited means?”

See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”

Key points made at the CLE this morning included the point that there are plenty of people who make more than the guidelines but who cannot afford legal services. Those people need help as well.

My client didn’t pay, that’s pro bono.

Categorically false. Rule 6.1(a) is clear: a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”

Comment [4] drives home the point: “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”

Note, however that the Comment goes on to indicate that “. . . the award of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.”

I’m a government attorney, so I don’t have to do pro bono.

False. Rule 6.1 applies to every lawyer. Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b). Specifically, the Comment states

“Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2). According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).

So I’m doing pro bono work, what other rules apply?

All of them! You must be competent & diligent. You can’t communicate with a represented party on the subject of the representation without counsel’s consent. You can’t lie. In short, pro bono is not license to act unethically.

under the auspices of a program sponsored by a nonprofit organization or court

without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.

If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict. In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation. See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”

Remember: a lawyer may provide pro bono services outside the auspices of program sponsored by a nonprofit or court. However, if so, the lawyer must check for conflicts.

True or false: the rules exempt government & non-profit attorneys from the pro bono expectation.

False. Rule 6.1 applies to every lawyer. Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b). Specifically, the Comment states

“Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2). According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).”

Question 3

Client retains Lawyer in a divorce. Client agrees to pay Lawyer an hourly fee. The fee agreement is reduced to a writing that is signed by Client.

The matter ends with a final order. By then, Client has paid less than 10% of the total fee and owes Lawyer for approximately 60 hours of work. Lawyer writes off the bill.

May Lawyer claim the 60 hours as pro bono?

A. Yes, because Lawyer did not get paid.

B. Yes, as long as Lawyer does not continue to try to collect the bill.

C. Yes, but cannot claim the hours if Client decides voluntarily to pay.

D. No.

Rule 6.1(a) is clear: a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..” Comment [4] drives home the point: “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”

Question 4

Which section of the rules is relaxed for lawyers who do pro bono work at short-term legal services programs sponsored by non-profits or government agencies?

At various live quizzes, I’ve used questions related to the ethics of P2P filing sharing and the legal battle between Napster & Metallica.

Your task: name the movie in which Justin Timberlake played Sean Parker, the co-founder of Napster.

There’s a hint in the tags. And, here’s a bit of the dialogue:

Sean Parker: Well, I founded an internet company that let folks download and share music for free.Amy: Kind of like Napster?Sean Parker: Exactly like Napster.Amy: What do you mean?Sean Parker: I founded Napster.